A newly issued decision from the Court of Special Appeals of Maryland addresses the admissibility of testimony regarding a doctor’s customary practice in a medical malpractice suit. The court held that the trial court acted within its discretion in admitting habit evidence regarding an emergency room physician’s procedures when examining a patient on a backboard.

In Rosebrock v. Eastern Shore Emergency Physicians, LLC, the patient was taken to the emergency room on a backboard, complaining of knee, hip, and lower back pain following a slip and fall accident. She was diagnosed by the attending physician as having knee and hip contusions, and she was discharged. Continuing to experience back pain, the patient sought medical attention from several other doctors. Subsequent medical tests revealed that the patient, in fact, had a fractured vertebrae, which required surgery. As a result of an infected surgical wound, the patient then suffered anoxic brain injury, which left her in a vegetative state until her death seven years later.

At issue on appeal in the medical malpractice case was whether the attending emergency room physician, who could not remember treating the patient specifically, could testify as to her usual procedure of examining patients on a backboard.

Under Maryland law, evidence of a person’s habit under similar circumstances can be used to prove that his or her conduct on a particular occasion at issue was also done in conformity with that habit. Habit is generally described as a consistent, reflexive manner of responding to a particular kind of situation with a specific type of conduct. In determining whether the conduct rises to the level of habit, courts will consider the number of times it is performed and the regularity of the conduct.

Considering the personal interactions between doctors and their patients, one would not expect habit evidence to be commonly applied in medical malpractice cases. However, in Rosebrock v. Eastern Shore Emergency Physicians, LLC, the Court of Special Appeals of Maryland found that the attending physician’s testimony regarding her own habit in examining patients brought to the ER on backboards was admissible because of the thousands of times she performed the procedure, and because of her testimony that she did it the same way, every single time, for every patient that was removed from a backboard.

The court also held that the habit testimony need not be corroborated by another source to be admissible. Instead, the lack of corroboration will go to the weight of the evidence as determined by a jury, and it can be brought up in cross-examination by the plaintiff’s attorney. Nor did the court find that the probative value of the habit evidence was substantially outweighed by unfair prejudice, misleading the jury, or confusion of the issues.

If you or a loved one has been the victim of faulty medical care in Maryland, seeking compensation from those responsible can be an important decision. The medical malpractice attorneys at Foran & Foran, P.A. have the resources and experience necessary to pursue your case. Contact the experienced legal team at Foran & Foran, P.A. to set up your consultation at (301) 441-2022.